Landmark ISP piracy case could kick thousands offline

A landmark Australian court case could see thousands of Australians losing their internet connection, and has major implications worldwide for the law on copyright.

The landmark case started on 6 October in Sydney's Federal Court. A group of 34 film companies, represented by the Australian Federation Against Copyright Theft (AFACT) have taken iiNet, Australia’s third-largest ISP, to court over claims that they have allowed users to share copyright material illegally.

In their opening statement, AFACT lawyers claimed that they had found almost 98,000 iiNet customers had illegally shared material online within a 59-week period. The most pirated films during that period were Wanted and Hancock.

iiNet’s defence will rest on three key arguments. First, they intend to explain that it is impossible for ISPs to police the multitude of digital fragments that are carried across file-sharing networks.

Second, they will point out that this activity takes place despite their efforts to the contrary: they have not given any authorisation for users to breach copyright during file-sharing. Finally, they will argue that the monitoring of user downloads would be a breach of privacy.

In his opening remarks, iiNet’s barrister Richard Cobdem SC also suggested that downloaders could be confused because many film producers already have contractual relationships with sites that promote downloads. The BitTorrent website that hosts the software and promotes downloading displays the logos of Fox, Paramount and Warner Brothers, who are applicants in the AFACT claim.

He added that the film industry was requiring ISPs to carry out an impossible task: if all the copyright notices iiNet received from film studios over a five month period were printed, it would take 180 large folders and more than 12 trolleys to bring them into the court.

This week, presiding judge Justice Cowdroy ruled that a series of documents AFACT had sought to have excluded from the trial should be included and considered. This would enable the court to evaluate the current copyright notice procedure – and determine whether it was reasonable.

Since then, the court has heard evidence from DTecNet, the company engaged by AFACT to investigate allegations of copyright infringement, and from a number of US film industry executives interviewed by video link.

Chief Executive of iiNet Michael Malone said he welcomed the opportunity to defend his company’s position and was confident of iiNet’s position. "iiNet has never supported or encouraged breaches of the law, including infringement of the Copyright Act.

"We do not, and never have supported, encouraged or authorised illegal sharing or downloading of files in breach of copyright laws. I am very confident that we will be vindicated and these allegations will be dismissed as unfounded, unproven and untrue."

Lawyers for the film industry claim that iiNet has done "nothing" to discourage copyright infringement on its network.

Instead, "when caught between a rock and a hard place, when push comes to shove they [iiNet] will not enforce" terms and conditions in its standard customer agreement that enables the ISP to cut off the services of users who have infringed copyright.

The consequences of this case cannot be understated. If AFACT win, then Australian ISPs could be forced to monitor and cut off customers who share pirated movies – and those who do engage in illegal downloads could see their connection terminated by their ISPs.

The case is significant, as it represents the film industry attempting to clamp down on file-sharing through the legal system, rather than by lobbying for new laws on the issue, as is presently the case in Europe. Again, a victory in Australia could see a number of carbon copy cases being mounted in other jurisdictions.